Criminal Law - Assault - Sexual Assault - Victim under 16 - Conviction - Appeal
The appellant appealed his conviction after trial in Queen’s Bench by judge alone of committing sexual offences against two complainants who were sisters, aged 10 and 14 respectively at the time. He was convicted of committing: a sexual assault on the younger sister contrary to s. 271 of the Criminal Code; touching her for a sexual purpose contrary to s. 151; sexual assaults on the older sister between November 2012 and August 2015 contrary to s. 271, touching her for a sexual purpose contrary to s. 151; and during the same period, obtaining for consideration the sexual services of a person under 18 years of age contrary s. 286.1(2). The appellant was living in a common-law relationship with the mother of the two complainants. Both the complainants gave video-recorded statements to the police that were admitted into evidence at trial as part of their testimonies. The younger sister provided a description of the appellant cuddling with her in his bed while they were alone together at home and then touching her inappropriately and showing her a vibrator, at which point she ran out of the house. When the older sister heard what had happened, she began crying and asked if “it” had happened to her sister. She told the police that she was the victim of repeated sexual assaults by the appellant which began when she was 10 and ended when she was 13 that included penile penetration, the use of a vibrator and masturbating him. He threatened to withhold access to the home wireless if she did not cooperate. She had not disclosed the assaults because the appellant told her not to and because she thought that she would get into trouble and that no one would believe her. When the appellant testified, his version of the events involving the youngest sister differed from hers, saying that she sat on him while he was in bed having a nap but her demeanor changed when a vibrator used by him and his spouse rolled out from under a pillow. He denied that he touched the child for any sexual purpose and denied that he ever touched the older sister for a sexual purpose or had intercourse with her or bartered for sexual favours. The trial judge reviewed the principles set out in R v D.W. and found the children’s evidence to be truthful and reliable. He rejected the appellant’s denial of criminal misconduct and found that the presumption of innocence had been displaced. On appeal, the appellant’s grounds, based primarily on the brevity of the trial judge’s decision were that he erred in law: 1) by incorrectly applying the criminal standard of proof. Although the judge correctly instructed himself on the principles, he misapplied them. The judge obviously preferred the evidence of the Crown and that was the only reason he rejected his evidence. The judge reversed the burden when he assessed the appellant’s evidence in light of the Crown’s; 2) by unevenly scrutinizing the evidence. He submitted that the judge failed to critically assess inconsistencies in the children’s evidence that warranted scrutiny which would have undermined the Crown’s evidence; 3) by failing to provide adequate reasons to explain his guilty verdict such that the deficiency foreclosed meaningful appellate review; and 4) by failing to address prejudice suffered by him as a result of late disclosure. He argued that the timing of disclosure to him of communications between the complainants’ mother and the police violated his s. 7 Charter rights. The appellant’s counsel had not made a Charter application during the trial.
HELD: The appeal was dismissed. The court found with respect to each ground that it was satisfied that the trial judge had not erred in law: 1) because he correctly applied the criminal burden of proof. He found the appellant guilty only after consideration of all of the evidence, including the appellant’s testimony; 2) in his scrutiny of the evidence. There was no merit to the argument. This ground related to trial fairness and Mehari had established that uneven scrutiny cannot constitute an independent ground of appeal. If such an allegation is made, the appellant is required to identify something sufficiently significant in the reasons or record to establish that the trial judge employed a faulty methodology in deciding credibility, and in this case, the appellant had failed to make it out on the reasons or the record; 3) in providing adequate reasons. The judge’s conclusion that the weight of the appellant’s denial was overwhelmed by the truth of the children’s evidence clearly indicated that he rejected the appellant’s evidence. Read in the context of the evidence at trial and the submissions of counsel, his reasons were adequate; and 4) with respect to the late disclosure, because the defence did not ask for a decision nor did he make one. This ground raised a new issue on appeal. It would not allow the appellant to make a Charter argument because the evidence did not show a Charter breach, and there would be no miscarriage of justice if this ground were not considered, as he had not shown a reasonable possibility the non-disclosure affected the trial’s outcome or the overall fairness of the trial.